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Hastings International and Comparative Law Review

Abstract

On June 24, 2011, the Court of Military Commission Review (CMCR) released its decision in the case of U.S. v. Hamdan, holding that material support for terrorism (MST) constitutes a law of war violation. The Court of Appeals for the D.C. Circuit granted certiorari and heard oral arguments in the case on May 3, 2012. The court released its decision on October 16, 2012, as this article was going to the publisher. This article argues that the charge of MST is not a violation of the law of war, and that is the conclusion ultimately reached by the D.C. Circuit.

This article contends that MST can be viewed as the consistent logical continuation of the Bush Doctrine, a sweeping pronouncement that the U.S. will make no distinction between those who aid terrorists and the terrorists themselves. Both MST and the Bush Doctrine seek to impose liability on a third party, provided that party possesses a "permissive" mens rea, and performs some act falling within the broad ambit of material support, regardless of whether the assistance intended to further a terrorist act.

The Obama Administration has largely accepted the theoretical underpinnings of the Bush Doctrine while endorsing a bifurcated approach to military commissions. Despite a lack of bipartisan support for bifurcation, after two acts of Congress, a Supreme Court decision and an executive review, the military commissions system is at long last a fair and transparent forum for the administration of justice. Nevertheless, continuing to charge suspected terrorists with MST before military commissions not only threatens hard-won convictions, but has renewed questions about the system's legitimacy.

The CMCR's holding that MST constitutes a war crime rested on a subtle, yet fatal error. In its decision, the court conflated mere criminal acts with war crimes. Notwithstanding the CMCR's holding, the charge of MST cannot be said to constitute a violation of the laws of war, and military commissions have no jurisdiction over the charge. As military prosecutors continue to level the charge, they compromise the commissions' credibility and defer total redemption.

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